200 A. 279 | Pa. Super. Ct. | 1938
Argued April 13, 1938. Thomas Bobbitt, Sr., a resident of Erie, Pa., died on June 16, 1936. On June 30, 1936, a paper, dated the ___ day of February, 1936, alleged to be the will of Thomas Bobbitt, Sr., was presented to the register of wills and proved and letters testamentary were issued to B.T. Foley, the executor named.
On July 31, 1936, Thomas Bobbitt, Jr., a son of the decedent, appealed from the decision of the register of *388 wills admitting to probate the said paper, as the last will and testament of said decedent, and granting letters testamentary thereon, and entered security in the sum of $500. He also presented a petition to the orphans' court asking for a citation to determine (1) whether at the time of the execution of said writing the decedent was of sound mind; (2) whether the said writing was procured by undue influence, duress, constraint and/or forgery practiced upon the decedent by his daughter, Mattie Bobbitt, and others; (3) whether said writing is the will of said decedent; which citation was issued as prayed for on August 4, 1936.
Following this, hearings were had in court, and on March 27, 1937 the orphans' court entered the following order or decree: "Now, to wit, March 27, 1937, the appeal is sustained and the probate of the will is set aside. J. ORIN WAITE, President Judge." This was a definitive, final, and appealable decree,(Schwilke's App.,
By the Act of May 11, 1927, P.L. 972, the appeal had to be taken within three calendar months from the entry of the decree.
On April 12, 1937, Mattie Bobbitt, the present appellant, filed a petition asking for a rehearing, and the same day the court granted a rule to show cause, returnable *389
April 26, 1937, but made no order staying the proceedings, pending the consideration of the rule. Unless such an order is made, (Frazier's Est.,
No formal disposition of the rule was made, but testimony was taken before the court on June 21, 1937.
On July 27, 1937 the attorneys for the proponent — the present appellant — filed a paper specifying grounds for exception to the order of the court of April 1, 1937, as follows:
"1. Exception is taken to the order of the court: `Now, to wit: March 27, 1937, the appeal is sustained and the probate of the will is set aside,' said order being contrary to the evidence and not prayed for in the pleadings.
"2. Exception is taken to the finding of the court that the will of Thomas Bobbitt, Sr. was improperly executed.
"3. Exception is taken to the finding of the court that there was no authorization to affix the signature of Thomas Bobbitt, Sr., to said will."
This was done without special allowance by the court or notice to the appellee. If it was done for the purpose of complying with section 24 of rule 25 of the Orphans' Court of Erie County1, it was too late, for unless specific exceptions are filed to the decree of the *390
court within ten days after the same is entered, the decree automatically becomes final. These specific exceptions were not filed until three months and twenty-six days after the decree was entered, and in the meantime the three months within which an appeal had to be taken from the decree had expired, and the court below was without power, then, to extend it: Wise v. CambridgeSprings Boro,
The situation was not changed by the fact that the court below, in its opinion filed September 9, 1937, treated the proceeding pending before it as if it were on exceptions duly filed to the order of March 27, 1937, instead of a rule for a rehearing, and dismissed the exceptions and made the order of March 27, 1937 absolute: Estate of Rachel Core,
We feel less than usual hesitancy in quashing the appeal, because our review of the case on the merits leads us to agree with the court below. See Kelly's Est.,
The appeal is quashed.
